Anti-Money Laundering Distributor Due Diligence

www.pwc.lu/anti-money-laundering

Anti-Money Laundering Distributor Due Diligence

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PwC Luxembourg (www.pwc.lu) is the largest professional services firm in Luxembourg with 2,300 people employed from 57 different countries. It provides audit, tax and advisory services including management consulting, transaction, financing and regulatory advice to a wide variety of clients from local and middle market entrepreneurs to large multinational companies operating from Luxembourg and the Greater Region. It helps its clients create the value they are looking for by giving comfort to the capital markets and providing advice through an industry focused approach. The global PwC network is the largest provider of professional services in audit, tax and advisory. We’re a network of independent firms in 157 countries and employ more than 184,000 people. Tell us what matters to you and find out more by visiting us at 2 PwC and www.pwc.lu. www.pwc.com

Table of Contents

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About the Survey

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How concerned are you about your distribution network?

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The relationship between third party transfer agency and Management Company outsourcing TA activities 8

Country Risk Assessment

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What are you doing today to meet your obligation to know your distribution network? 12

PwC viewpoint

Anti-Money Laundering Distributor Due Diligence

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Overview Growing pressure from regulators to comply with AntiMoney Laundering (AML) and Counter Terrorist Financing (CTF) rules and regulations have brought the topic to the top of Management’s agenda. Protecting the Luxembourg Asset Management industry from the threat of fines and reputational damage is vital to the individual market players and the Luxembourg financial market as a whole.

Birgit Goldak, Partner, Leader AML Distribution Due Diligence Services

The new CSSF regulation 12-02 reinforces Luxembourg’s legislative AML/CTF arena. It notably includes an essential element of the fund industry: the reinforced oversight of distribution channels. In this regard, Luxembourg management companies are prompted to systematically perform both initial and on-going due diligence for the providers they work with worldwide. During the AML Distributor Due Diligence round table event on 5 november 2013, we surveyed the participants on the challenges and current best-practice surrounding Distributor Due Diligence. The survey’s results are not meant to be representative of the entire Luxembourg marketplace but rather to provide insight on the way the fund industry is managing the implementation of the enhanced requirements to carry out due diligence on their distribution network. This conference contributed an engaging exchange on the fight against money laundering and terrorist financing and enhanced the dialogue between the regulator, the professionals and institutions to become ever more effective and coherent in the practical implementation of Luxembourg’s stringent laws and regulations in this area. We thank each of the participants for their time and valued contribution.

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We trust you will find this study interesting and useful. We would be happy to discuss any of the topics within this document in more details. About Distributor Due Diligence Our dedicated team works with local PwC teams world-wide to ensure you receive a global service (expert knowledge on Luxembourg AML laws & regulations) with a local touch (proficient knowledge of how distribution is carried out locally). We can help at the initial set-up of your company’s Distributor Due Diligence procedures and when carrying out initial and on-going Distributor Due Diligence.

Best regards,

Birgit Goldak, Partner, Leader AML Distribution Due Diligence Services

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About the Survey More than 50 professionals of Luxembourg’s asset management industry attended the AML Distributor Due Diligence round table organised by PwC Luxembourg on Tuesday 5 November. The round table gave participants the opportunity to revisit some of the most pertinent aspects related to Anti-Money Laundering and Counter Terrorist Financing (AML/CTF), notably when it comes to the Distributor Due Diligence procedures for marketing investment funds outside Luxembourg. The peers discussed the latest regulatory evolutions in the sector and shared best practices.

Management Company outsourcing TA

Management Company with in-house TA

Self-Managed SICAV

Third Party TA

Anti-Money Laundering Distributor Due Diligence

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What does your distribution network look like? Nearly a year after the new rules have become effective, industry professionals are facing numerous practical challenges: supervising multiple distributors, communicating in various foreign languages, understanding AML/CTF legislation and key risks of each country.

How many distribution contracts do you have in place? Maintaining a cross-border distribution network or developing one in new countries while adhering to AML distributor due diligence procedures considerably increases the workload and demands additional skills. Cost control and effective distribution remain key concerns for investment funds and management companies.

Less than 100 19% Between 100 and 500 43% Between 500 and 1000 14% More than 1000 24%

In which region do you have the largest distribution network? “Exploring new market opportunities and developing your distribution network is a key business requirement for Luxemburg investment funds. The lasting reorientation of growth toward emerging countries offers new

market outlets. To collaborate with their foreign distributors - current or future - Luxembourg funds and management companies have to be even more meticulous than in the past,” explained Birgit Goldak, Partner and AML Distribution Due Diligence

Services Leader, PwC Luxembourg at the AML Distributor Due Diligence round table event organised by PwC Luxembourg.

Hot spots for distribution Total number of cross-border registrations as at 31 December 2013: Over 3,000 NO 74%

IS 11%

Between 1,000 and 2,999

FI 80%

Between 500 and 999

FO 1% SE 89%

UK 95%

NL 92%

PL 14% DE 97%

BE 77% CZ 17%

LU 92%

GG 19%

US 4%

AT 90%

LI 16% FR 95%

TT 2%

PT 42%

HU 16% RO 4%

HR 1%

KR 24% LB 3%

BG 4%

IT 89%

AD 1%

Saint-Martin 1%

VG 1% CW 2%

PA 2%

SI 7%

CH 97% MC 4%

BS 0%

KY 4%

UA 0%

SK 15%

JE 23%

MX 4%

Percentage of Top 100 management groups distributing

LT 10%

IM 10% IE 72%

GL 1%

Less than 100

x% cross-border funds in each market

LV 10%

DK 64%

CA 5%

Between 100 and 499

EE 10%

JO 2% QA 3%

ES 85%

GR 23%

TR 3%

KW 1%

JP 20%

BH 21% AE 9%

MO 28%

OM 2%

TW 47% HK 44%

CO 1% GI 10%

MT 13% CY 12%

SG 82%

PE 39% ID 1%

EG 1%

CL 48%

AU 6%

NZ 1%

BW 1%

MU 3% ZA 8%

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Sources: Lipper LIM and PwC analysis, 31 December 2013.

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How many Distributors in countries that you assess as Luxembourg AML / CTF equivalent countries do you work with who then sell into countries that you assess as non-Luxembourg AML / CTF equivalent? Less than 5 38% Between 5 and 20 34% Between 20 and 50 19% More than 50 9%

How many local Distributors (locally regulated, not FATF group member) in countries that you assess as not “Luxembourg AML / CTF equivalent” do you work with? The Luxembourg funds cross-border distribution is increasingly shifting towards certain regions and new markets such as Asia, Latin America and the Middle East. It is important that Luxembourg funds remain attractive to local investors in these regions. Investment Fund Distributors must apply AML/CTF measures that are equivalent to those applicable in Luxembourg. For investment funds it is essential to ascertain this before starting a business relationship with a Distributor. Communication around the subject is, however, not very easy, especially when working with Distributors whose AML / CTF country legislation is not fully equivalent to those imposed by the third European AML Directive 2005/60/EC. AML is classically seen as a key element to get right but it is also a very difficult topic to communicate about with distributors

that act in markets that for many players are extremely interesting from a commercial perspective but which are generally not assessed as having AML/CTF measures in place that are judged as equivalent to Luxembourg. Leader, PwC Luxembourg at the AML Distributor Due Diligence round table event organised by PwC Luxembourg. Less than 5 36% Between 5 and 20 31% Between 20 and 50 19% More than 50 14%

If you look across your whole fund range, by AUM, what percentage of your fund registers are “Distributor omnibus accounts” (i.e. similar relationships to correspondent banking)? Below 50% 19% Between 50% and 75% 30% Between 85% and 100% 35% I have to ask my specialist! 16%

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The relationship between third party transfer agency and Management Company outsourcing TA activities Do Management Companies ask their transfer agent to support them in the Distributor Due Diligence process? The TA only carries out distributor KYC including sending of due diligence questionnaire, the ManCo decides if further AML/CTF due diligence is required. 32% All distributor KYC and AML/CTF distributor due diligence is done by the ManCo. 54% The ManCo fully outsources AML/CTF due diligence to the TA, including distributor due diligence. 15%

Do you perform enhanced due diligence on omnibus accounts/relationships similar to correspondent banking? Yes, we systematically perform enhanced due diligence (i.e. obtain Wolfsberg questionnaire or equivalent, on-site visit, sample testing, etc.). 21% No, we apply a risk based approach. We only apply enhanced due diligence for omnibus account holders in third countries, but not in EU unless the risk is assessed as increased. 70% We do not have omnibus accounts, only direct investors. 0% Can I call a friend? 9%

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Do you perform enhanced due diligence on omnibus accounts/relationships similar to correspondent banking? Yes, summary of methodology applied and overview of results shared. 31% Yes, but only the results of the due diligence are shared with the TA (e.g. comfort letter or board resolution). 26% No, this information is not shared with the TA. 36% I don’t know. 7%

As a third party TA, do you request from the funds you administer a confirmation that appropriate due diligence has been done on the Distributors? Investment funds, management companies, transfer agents, custodians, distributors, fund initiators, final investors. The complexity and multitude of those involved in fund distribution raise the question of where responsibilities of AML/CTF procedures lie and who performs the identification of economic beneficiaries.

fund is properly identified. Where the investment fund delegates the performance of certain AML/CTF duties, the different actors must clearly agree on who will perform which duty and any grey area must be dispersed.

The CSSF clarified that it is the investment fund/management company’s ultimate responsibility of complying with AML / CTF applicable laws and regulations and thus ensuring that every investor in an investment

No

Yes 15% 23% Not yet, but we will. 62%

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Country Risk Assessment Article 7 of CSSF Regulation 12-02 states that “it is for each professional to assess if a Member State or a third country imposes obligations which are equivalent to those laid down in the Law or Directive 2005/60/EC according to the particular circumstances of the case”. The reasons for concluding that a Member State or a third country imposes equivalent obligations shall be documented when the decision is taken and shall be based on relevant and up-to-date information. The obligations imposed by a Member State shall be considered equivalent, except where relevant information points to the fact that this assumption cannot be upheld. The conclusion that these obligations are equivalent shall be regularly reviewed, in particular when new relevant information about the country concerned is available.

Whose country risk assessment is the one that ultimately dictates the risk based approach to be taken? Although there was no clear consensus between the participants on whose country risk assessment would prevail, the majority of the participants agreed that where there were discrepancies between the Transfer Agent, Management Company and Fund’s country risk assessment, an agreement had to be reached between all parties.

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21%

26%

19%

33%

We use the FATF/ EU/EEA list.

The third party TA’s country risk assessment.

The ManCo/ Investment Fund risk assessment.

Where there are discrepancies between TA/ManCo/Fund country risk assessment, an agreement has to be reached.

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Have you completed a written country risk assessment for all countries that you are dealing with, including EU, EEA, “European White List” and FATF countries (prepared in-house or by an external provider)? 49% of the participants confirmed that they had a written country risk assessment for all countries that they deal with whereas 35% of the participants completed a written country risk assessment only for countries which are not automatically equivalent to Luxembourg AML/CTF regulations. According to CSSF Regulation 12-02, Art. 7, “The conclusion that the AML/CTF obligations applicable in a country are equivalent shall be regularly reviewed, in particular when new relevant information about the country concerned is available”. Therefore, it is important that industry players are able to demonstrate that they have not only carried out a country risk assessment for countries which are automatically non-equivalent, but also that they have thought about why member states can be considered equivalent.

49%

35%

Yes, for all countries.

Only for those countries which are not automatically equivalent for us.

5%

11%

Only for high risk countries.

Yes, for countries that are “new” to us.

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What are you doing today to meet your obligation to know your distribution network? CSSF Regulation 12-02 does not fundamentally change the way that CSSF regulated firms will perform their AML/CTF duties. However, the level of coherent formalisation will rise which will impact the fund industry as an enhanced level of due diligence must be performed on all third party distributors of Luxembourg investment funds. As confirmed by the CSSF during the event in November 2013, the final responsibility of AML/CTF lies with the investment funds or their management companies and therefore, the pressure on the investment funds and management companies is to ensure that third party distributors have AML measures in place equivalent to those in Luxembourg. In addition, funds or management companies which have contractually delegated AML/CTF checks to third parties (i.e. omnibus accounts) must now have on-going monitoring controls in place to ensure that third parties complies with AML/CTF due diligence requirements on an on-going basis.

Do you have a structured AML Distributor Due Diligence process defined and executed? 12% 12%

60%

17% Yes, we are live: we have a structured process applying a risk based approach. Sort of, i.e. we are still thinking about the approach but do it in some cases. We want to do it but are still thinking about the best approach. No, I am a third party TA and it is the fund/ ManCo who has the relationship with the distributor.

Do you believe that your current AML Distributor Due Diligence oversight (initial and on-going) is sufficient? 9%

17%

11%

Yes, initial and on-going Initial yes, but not on-going 63%

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No That’s what I would like to know!

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What type of due diligence do you carry out on the Distributor? Only ManCos and SICAVs answered this question.

If you carry out AML Distributor Due Diligence, is this done by the Luxembourg entity or do you involve group resources such as Internal Audit or Group Compliance? 3%

34%

50%

30%

18%

From Luxembourg. Group resources with Luxembourg oversight (e.g. Compliance, other). A mix of the two above. None, this is outsourced.

36%

30%

Desk top research only (e.g. receiving questionnaires, asking for AML/CTF procedures, comfort letter). Depending on the risk assessed, mix of desk top and on-site visit. Work in progress, not yet implemented.

Today have you carried out any onsite AML due diligence visits at your Distributors offices? 2% 49%

Do you cover sub-distributors? Only ManCos and SICAVs answered this question. 29%

20%

n/a

74%

30%

29%

No

Never.

8%

Rarely. Regularly. 41% Yes, AML Distribution Due Diligence needs to look through and ensure that the last one in the chain is in line.

If you have outsourced the execution of AML Distributor Due Diligence to another entity within your group, do you perform regular oversight controls?

Really? Is that not a bit exaggerated?

Yes

11% Not yet

8%

No, that is simply not feasible. Work in progress, not yet implemented.

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PwC viewpoint The continuously evolving regulatory environment in the AML/CTF arena, as well as growing pressure from the regulatory authorities remains critical for all professionals in the financial sector. Professionals are not only under greater pressure to ensure that their systems and controls are able to deal with an ever-increasing regulatory burden, but they must also be able to anticipate changing regulatory expectations and standards, quickly adapting their compliance programs to meet these new expectations. The identification of the distributor, i.e. a proper distributor due diligence programme, is only one part of the AML risk. The need for KYC documentation and due diligence for all distributors which must be obtained at the set-up of the relationship with the distributor, must be kept up to date and ensuring an on-going monitoring of the relationship is creating challenges in the industry and which will have a direct impact on the distribution of funds.

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Your contacts

Birgit Goldak Partner, AML Distributor Due Diligence +352 49 48 48 5687 [email protected]

Roxane Haas Partner, AML Services Leader +352 49 48 48 2451 [email protected]

Michael Weis Director, AML Services +352 49 48 48 4153 [email protected]



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